Part 4Discipline

Part 4—Discipline 42—Interpretation of Part 4 In this Part— agent has the meaning assigned to the term by section 4 and includes— (a) a former agent; and (b) a registered agent, whether or not carrying on business as such, and a former registered agent; director of a body corporate includes a former director of a body corporate; property manager has the meaning assigned to the term by section 3 and includes— (a) a former property manager; and (b) a registered property manager, whether or not in employment as such, and a former registered property manager; sales representative has the meaning assigned to the term by section 3 and includes— (a) a former sales representative; and (b) a registered sales representative, whether or not in employment as such, and a former registered sales representative. 43—Cause for disciplinary action against agents, sales representatives or property managers (1) There is proper cause for disciplinary action against an agent, sales representative or property manager if— (a) any registration of the person under this Act was improperly obtained; or (b) the person has acted contrary to an assurance accepted by the Commissioner under the Fair Trading Act 1987; or (c) the person has acted contrary to this Act or the Land and Business (Sale and Conveyancing) Act 1994 or otherwise unlawfully, improperly, negligently or unfairly; or (d) in the case of an agent who has been employed or engaged to manage and supervise an incorporated agent's business or an agent's place of business, the agent or any other person has acted unlawfully, improperly, negligently or unfairly in the course of managing or supervising, or being employed or otherwise engaged in or at that business or place of business; or (e) events have occurred such that the person would not be entitled to be registered as an agent, sales representative or property manager if the person were to apply for registration. (2) Disciplinary action may be taken against each director of a body corporate that is an agent if there is proper cause for disciplinary action against the body corporate. (3) Disciplinary action may not be taken against a person in relation to the act or default of another if that person could not reasonably be expected to have prevented the act or default. (4) This section applies in relation to conduct occurring before or after the commencement of this Act. 44—Complaints The Commissioner or any other person may lodge with the Tribunal a complaint setting out matters that are alleged to constitute grounds for disciplinary action under this Part. 45—Hearing by Tribunal (1) On the lodging of a complaint, the Tribunal may conduct a hearing for the purpose of determining whether the matters alleged in the complaint constitute grounds for disciplinary action under this Part. (2) Without limiting the usual powers of the Tribunal, the Tribunal may during the hearing— (a) allow an adjournment to enable the Commissioner to investigate or further investigate matters to which the complaint relates; and (b) allow the modification of the complaint or additional allegations to be included in the complaint subject to any conditions as to adjournment and notice to parties and other conditions that the Tribunal may think fit to impose. 46—Participation of assessors in disciplinary proceedings (1) For the purposes of section 22 of the South Australian Civil and Administrative Tribunal Act 2013, there will be a panel of assessors consisting of— (a) persons representative of agents; and (b) persons representative of members of the public who deal with agents, who have expertise that would be of value to the Tribunal in relation to proceedings before the Tribunal under this Part. (2) In any proceedings under this Part, the Tribunal may, if the President so determines, sit with 1 or more assessors from the panel. (3) In this section— President means the President of the Tribunal appointed under the South Australian Civil and Administrative Tribunal Act 2013. 47—Disciplinary action (1) Subject to subsection (1a), on the hearing of a complaint, the Tribunal may, if it is satisfied on the balance of probabilities that there is proper cause for taking disciplinary action against the person to whom the complaint relates, by an order or orders do one or more of the following: (a) reprimand the person; (b) impose a fine not exceeding $20 000 on the person; (c) either— (ai) impose conditions or further conditions on any registration of the person; or (i) suspend any registration of the person for a specified period or until the fulfilment of stipulated conditions or until further order; or (ii) cancel any registration of the person; (d) in the case of a person whose registration is suspended—impose conditions as to the conduct of the person or the person's business as an agent after the end of the period of suspension; (e) disqualify the person from being registered under this Act; (f) prohibit the person from being employed or otherwise engaged in the business of an agent; (g) prohibit the person from being a director of a body corporate that is an agent. (1a) If the person to whom the complaint relates has been found guilty of a prescribed offence and the circumstances of the offence form, in whole or in part, the subject matter of the complaint, the Tribunal must, by order, cancel any registration of the person and disqualify the person from being so registered unless the Tribunal is satisfied on the balance of probabilities, by evidence given by the person on oath, that the offence was trifling or committed in exceptional circumstances. (1b) Nothing in subsection (1a) prevents the Tribunal from exercising such other powers under this section as the Tribunal considers appropriate in the circumstances. (2) The Tribunal may— (a) stipulate that a disqualification or prohibition is to apply— (i) permanently; or (ii) for a specified period; or (iii) until the fulfilment of stipulated conditions; or (iv) until further order; (b) stipulate that an order relating to a person is to have effect at a specified future time and impose conditions as to the conduct of the person or the person's business until that time. (3) A fine imposed under subsection (1) is payable to the Commissioner for the credit of the indemnity fund. (4) If— (a) a person has been found guilty of an offence; and (b) the circumstances of the offence form, in whole or in part, the subject matter of the complaint, the person is not liable to a fine under this section in respect of conduct giving rise to the offence. (5) In this section— prescribed offence means— (a) an offence against section 13(3); or (b) an offence against section 24A(2), section 24G(1), (2) or (3) or section 36 of the Land and Business (Sale and Conveyancing) Act 1994. 48—Contravention of orders (1) If a person contravenes or fails to comply with a condition imposed by the Tribunal as to the conduct of the person or the person's business, the person is guilty of an offence. Maximum penalty: $35 000 or imprisonment for 6 months. (2) If a person— (a) is employed or otherwise engages in the business of an agent; or (b) becomes a director of a body corporate that is an agent, in contravention of an order of the Tribunal, that person and the agent are each guilty of an offence. Maximum penalty: $35 000 or imprisonment for 6 months.